учебный год 2023 / Dynastic Right

of the fifteenth century regarding royal succession: that it is based on a peculiar French custom, more or less historically evolved. Very subtly the emphasis changes from "feudal custom" to "French custom."

Kingship in France was bound to be different in some ways from all others, but in the eyes of the French writers it was not only different but better. The search

for the unique excellence of the French crown affected greatly the conceptions regarding the law of succession.

4. CUSTOMARY LAW: SIMPLE SUCCESSION

The greatest external threat the Capetian dynasty ever faced came in the year 1420, when the moribund Charles VI was induced to adopt his

Henry V of England, as his heir. To give the greatest possible validity to this act, which was part of the Treaty of Troyes, the Parlement of Paris was per- suaded to endorse it in 1421. The following year Henry V and Charles VI died in quick succession, and the double dignity of King of England and France fell on Henry's infant son, Henry VI.

The supporters of the Dauphin Charles [VII] could reject the Treaty of Troyes on the grounds that Charles VI was mentally deranged and was acting under du- ress as a virtual captive of the English. They could also point to edicts of 1403 and 1407, when Charles VI himself had declared the inviolable right of his eldest

son to succeed to the throne.33 The fact is, however, that the treaty of Troyes was anticlimatic as far as the Dauphin's supporters were concerned. The real crisis had occurred two years earlier, in 1418, when the Dau- phin had been disinherited by his father, forced to flee to the south of France, and the regency taken from him and given to the Duke of Burgundy, Jean sans Peur. This event had brought forth from the pen of an avocat du roi, Jean de Terre Rouge, a treatise in the Dauphin's favor. Its arguments could be applied equally well to the situation a bit later, in 1420, and it seems that they were-although the Dauphin's destiny soon passed from his legist defenders to his men of arms (finally even a maid in arms). But a century later, in the blossoming of French political thought in

voulente du peuple de disposer et ordonner que les roys qui viennent par succession, & l'un meurt, que l'autre succede & ait plaine seigneurie du royaulme sans couronnement ou quelconque autre solennite." Jean Gerson, Liber de vita spirituali animae (Opera omnia 3: 33, ed. Antwerp, 1706): "Rex Franciae Regnum habet titulo successionis hereditariae ex primo consensu civium suorum."

volved in the Treaty of Troyes in 1420, in The royal funeral ceremony in Renaissance France, 91, 95f.

the age of the Renaissance, when printing allowed wide dissemination of all doctrines, Terre Rouge's treatise gained considerable stature in French constitutional

thought.

Jean de Terre Rouge was born in Nimes, educated probably at Toulouse and exercised public office as royal advocate in the seneschalship of Bearn. His prin- cipal legal frame of reference was Roman law. In the treatise in question,34 a third of his total allegations (which run over a thousand) are from the Corpus Iuris Civilis and its glossa ordinaria, but quite notice- ably he utilized only sparingly the works of the commentators: Bartolus he cited a few times, but not at all

Baldus, Lucas de Penna, and other great fourteenth- century Italian civilians. Being a Doctor of the Two Laws, his canon law allegations about equal civil law ones. For the rest, he was very well versed in Scrip- ture and knew Aristotle both independentlyand through the works of Aquinas and Egidius Romanus. In short, he brought into his political writings a fair balance of legal, theological, and scholastic thought. And since he was thoroughly eclectic in his view of how the French nation was constituted, the wide range of authorities he drew upon brought forth some unusual compounds of ideas, which challenge not only the reader's learning but also sometimes his credulity.

Terre Rouge's treatise is composed of three tracts, but only the first one acquired eminence in constitu- tional thought. In it, his main theory of royal succession is expounded. As a starting point, Terre Rouge used the basic distinction in Roman law between

the spheres of public and private property. Some things

are possessed patrimonially,as houses and fields; others are possessed publicly, as roads and rivers. Corre- spondingly, there are two kinds of succession to these kinds of

34The first editor, Jacques Bonaud de Sauset, gave Terre

Rouge's treatise the title Contrarebelles suorum regum, Lyons,

modern scholars will be found in Lemaire, Lois fondamentales,

development and significance of the Salic Law of the French,

Corpus mysticum regni, Album Helen Maud Cam [=Atudes presentees a la Commission Internationale pour l'Histoire des

Assemblees d'Etats 23:] 153-171, 1960. I am preparing a new edition of Terre Rouge's treatise, and in the introduction will weigh the factual Terre Rouge against the Terre Rouge of

fancy.

patrimonially or hereditarily, and succession by removal or by successive position, that is, where one person simply follows another, as in dignities, offices, and the like. Terre Rouge refers to this as "simple succession," and in this general category French royal succession falls.35

There are many ways in which simple succession can be accomplished, depending upon the nature of the office or dignity, and depending upon the traditions of a particular country. But in all cases, custom is the deciding factor. It may appear that in kingdoms where rulership is transmitted by hereditary succession (Hungary), or by testamentary succession (Aragon), that common law (which should dictate simple succession)

has been violated; actually, custom ultimately regulates these matters, and it just happens that the custom of these countries has allowed a place in public succession for the kind of succession which usually is restricted to private law.36 In France, custom has determined that simple succession should be conferred upon the first- born son, and failing a son upon cognate males. This is not at all a testamentary succession, for no king ever

has willed, or can will, his rulership in France; such an act never has been recognized by custom in France. And since the kingdom cannot be conferred by disposi- tive will, neither can it be said to pass on intestate.37

In short, he who succeeds to the realm of France cannot be called the heir of him to whom he succeeds, nor his patrimonial successor; he is successor only by sim- ple succession. Still, this kind of succession, established by custom, bears resemblance to the rules of hereditary succession, and might be labeled "quasi hereditary."38

est, nec proprie dici potest heres eius cui succedit, nec patri-

Terre Rouge calls it often a tertia species successionis. This "third species of succession" belongs to the genus

of simple succession, one might say, but has many of the characteristics of patrimonial succession. What it

lacks, primarily, is the dread paternal power (patria potestas) accorded the paterfamilias, which gives him the right to disinherit his son or to pass on to him only part of the patrimony. By contrast, the king of France cannot alienate any part of his realm, and cannot block his son from the full possession of it. The reason is

that in patrimonies the disposition of the goods is an inherent right of the father, but in the realm of France

the king's right of possession stems from the force of custom. This custom is not amenable to the king's dispositive will because it has been founded by the "Three Estates and the whole civil and mystical body

of the realm," to whom the kingdom really belongs, while the kings are only the administrators.39

At this point we have the vital elements of a truly parliamentarianargument, which some later commentators have professed to see strongly developed in Terre Rouge. All have at least taken note of the distinction

between successive and hereditary transmisson, upheld by the force of custom, which also gives Terre Rouge the aspect of a constitutionalist.40 But these

points of view are deceptive, for they ignore the con- tinuation of Terre Rouge's arguments when he takes up the question of greatest immediate importance to him: the Dauphin's right to be regent. For, having denied Charles VI the right to disinherit the Dauphin from the throne was only half the battle won, since it did not necessarily follow that the Dauphin could not be dis- barred from the regency. Owing to a quirk of history, the major development of the royal succession in the previous two centuries had to be reversed. Since the time of Philip II, the principle of familial succession had been strengthened by having the son succeed his father by his own right as primogenitus, instead of the heavy-handed device of making him rex designatus

were used for real and personalpropertytransference,showing that the public-privatedistinctionwas lurking in the backgroundof commonlaw; see W. W. Bucklandand A. D.

McNair,Romanlaw and commonlaw, 111, Cambridge,1936. 39Art. I, concl.24 (ed. cit., 34): "RexFranciaenon posset constitutionemaut legem facere per quam patrimonialiiure, aut hereditario(quamconsuetudineiuerit [sic] obtentum)in

regnosuccederetur.Probaturconclusio,quiaconsuetudoquae

est iam in actu superhoc, fuit & est introductaex consensu

trium statum,& totius civilis sive mysticicorporisregni, ad quos spectabantde iure communiregis institutio& electio."

Art. I, concl. 13 draws out the decisivedifferencebetween

patrimonialand regnalsuccessionson the basis of alienation, whichleads to this interestingcontrast:"Caeterumsuccessor in patrimonialibusdominishabetmulto pleniusius quamrex

in regno,namille potestvendere,alienare,diminuere,& etiam per alienationespatrimonialiain alios transferre,sic quod

consequenterliberialiquinihil ex eis vendicabunt,quaetamen rex agerenonpotest,nec peraliquasalienationesad alios regimen transferre"(ed. cit., 31).

40 See, in additionto the modernauthorscitedin n. 34, the sixteenth-centurywritersin n. 55 and in the text below,?7.

Now, in 1418, with the old King

moribund, the Dauphin had to be "designated" as asso- ciate ruler with his father. This could not be done by

the old means of crowning the heir; nor could it be done by royal fiat, since Charles VI had rejected his son. The best device that occurred to Terre Rouge was the analogy with civil law, where the son (provided the father approved of him as heir) was regarded as co-administrator of the estate along with his father, so that when the father died the son was regarded as simply continuing the existing administration rather than getting a new one.41 This meant the reactivation to some extent of the patria potestas, upon which this co-administerial power was predicated; but Terre Rouge had already denied that the patria potestas operated in the French royal succession, because it would have allowed alienation and/or testamentary dis- position by the father contrary to the son's interest. It

required some neat juristic legerdemain to negotiate this return to the milieu of civil inheritance in order

to capitalize upon the son's power as co-administrator-

i.e., the Dauphin's regency power.

summarize how Terre Rouge did this under three main headings: (1) the "right of filiation"; (2)

of primogeniture"; (3) the "seminally force."

1. The ius filiationis may be defined as a right which the children have to some part of the family belongings and privileges independent of the will of the father. Terre Rouge locates some minor instances of this within

the Corpus Iuris Civilis itself: children, because they are children, have the right to be buried in the family sepulchre; freedmen pass to the patron's children, as chil- dren, even if they are not his heirs; near relatives cannot

be deprived by testament of their "legitimate portion."42 These cases do not appear in the civil law as the workings of an autonomous principle; at most they only put limits upon the patria potestas, and without the patria potestas they would have no existence. But not so for Terre Rouge. The sum of these exceptions he makes

into a rule, not just an appendage to the patria potestas but independent from it by dint of "the sole cause of the nature of things":

Today a differencehas appearedin the old law of pa- ternal and emancipationalpower, in considerationof the sole cause of the nature of things, as in Cod. 6, 55, 12, Cod. 6, 58, 15, and Dig. 28, 2, 29: verily in those things

41Digest 28, 2, 11, the key lines of whichare "In the case of properheirs, it is perfectlyevidentthat a continuationof

ownershiplegally remainsso that there appearsto be no succession.. .; after the death of the father, the children

are not consideredto haveobtainedthe inheritance,but rather to have acquiredthe free administrationof the property."

42Art. I, concl. 16 (ed. cit., 32), alleging Dig. 38, 1, 29 and

Dig. 38, 2, 2, regardingfreedmen,Dig. 11, 7, 6, regarding

sepulchralrights,and Dig. 1, 7, 22, regardingthe legitimate portionwhich "doesnot come to the son by an exerciseof the testator'swill, but by the emperor'sprovision(principali providentia)."TerreRougerendersthosefinalwordsas legis

providentia: Art. I, concl. 18 (ed. cit., 32).

which are deferred to the children as children, even as the ancient law consideredthe sole cause of the nature of

things, when the paternalpower is removed (as Dig. 38,

2, 2 and Dig. 38, 2, 5), therefore also in the instance where the realm is deferredto the first-bornson, likewise such

sole cause of natural filiation should be heeded, when

civility [i.e., the operationof civil law] and paternalpower have been removedby said laws.43

It is true that at the time of the compilation of the Corpus Iuris Civilis there were inklings of limitations being put upon the ancient paternal power, but it

is strictly Terre Rouge's own doing, after gleaning these flaws in the paternal power, to throw out the pa- ternal power altogether and make the remnants into a principle founded in the "nature of things," which in his own time he claims has been extended to embrace

French royal succession. But the cleverness, if not the

correctness, of this argument must be admired, since by

raising minutiae to a higher order of things, to the realm of Nature, he does allow them easily to be transferred from the sphere of private law over to public law. Dismay may well have been the reaction of the skeptic, seeing here a French public law based upon a twisting of ideas in Roman private law, but for the many who believed in some historical attachment be-

tween the Roman and the French constitutions, Terre Rouge offered a satisfying theory that his nation had brought to consummation a principle of Nature which the Romans recognized but had failed to give full ex-

pression to.

2. Primogeniture, in a certain sense, contradicts the right of filiation, since the latter is enjoyed by all chil-

43Art. I, "Sexta conclusio, quod hodie differentia antiqui iuris patriae potestatis & emancipationis,est sublata naturali sola causa inspecta, ut in auth. in successione, C. de suis & legit. lib. [Cod. 6, 55 (54), 12: or Nov. 118, 1] & in corpore unde sumitur, & per legem, meminimus,C. de legibus habetur [Cod. 6, 58 (57), 15]; & potissime moto casu, quo ex testa- mento non succeditur, igitur, etc., iuxta glossam 1. Gallus ?. primo de liberis & postumis [Dig. 28, 2, 29]; veruntamenin his quae deferuntur filiis, ut filiis, etiam de iure antiquo, sola naturalis causa, patria semota potestate inspicienda est, ut D. de bonis libertorum 1, 2, ?. fin. [Dig. 38, 2, 1 & 2] & 1. liber-

tinus, ?. primo [Dig. 38, 2, 5]; igitur moto casu, quo regnum defertur primogenito ut talis sola naturalis causa filiationis attendetur,semota civilitate & patria potestate per dictas leges" (ed. cit., 36). Terre Rouge here is right for the wrong reason. The Roman law does distinguish kinds of succession, such as of freedmenmentionedin the previous note, which are exempt from the usual laws of inheritance,but instead of being

34: 479-512, 1956, who states in passing that Terre Rouge's argument that French royal succession is not hereditary but statutory (as at the beginning of this note) "n'est rien tres exactement qu'une autre survivance de la meme archaique conception" (p. 510); I myself would hesitate to call Terre Rouge's argument a "survival" until I could show a line of transmission.

dren and not just the first-born son. Outside the civil

law, of course, primogeniture is easily enough upheld, and, in a separate section entitled De luribus Primo-

geniturae, Terre Rouge gives full due to the scriptural and canonical sources.44 When it comes to squaring primogeniture with filiational right within the terms of civil law, Terre Rouge reverts to his initial contrast between patrimonial succession and simple succession,

and in particular to the question of alienation. In patrimonial successions, if the father should exercise his

right to alienate his possessions, the co-dominion which the son had had in those things would be terminated de facto; but in the realm of France, where the king cannot alienate any part of his domain, it is obvious that the son's dominion cannot be preempted de facto. Therefore, while the father lives, " the first-born son holds much more full and solid administration in the

kingdom than children hold in patrimonial things of the father."45 To put it briefly, the sum of many such arguments as this used by Terre Rouge can be reduced to a simple sophism: if the father in a "simple succession" cannot end the son's condominion on a de facto basis, then the son must possess that co-dominion de iure. To the unsympathetic reader it might seem as though the father had engendered a little monster whom he is powerless to disable in any fashion from acquiring every part of the inheritance, even to the point of hav- ing to share the dominion with the son during his own lifetime. Primogenitary right thus joins filiational right as a "natural right" existing independently of the father's will. A true reversal of the ancient civil law

notions results. Originally, the paternal power of the father was almost unlimited, and the son had dominion only patris gratia; by the workings of French public

law, on the other hand, the son enjoys unquestioned rights naturali causa, and the father is powerless to affect them.46

3. What I have given the label "seminally impressed force" is an argument which Terre Rouge derived from the field of philosophy, based upon some assumptions about the procreation of human beings which he gar- nered from Artistotle, via Thomas Aquinas, and set

44These sourcesare referredto above,p. 8 and in n. 19; Terre Rouge cites them in Art. II [pt. 2, a subsectionen-

titled De iuribus primogeniturae],concl. 1-8 (ed. cit., 38-39).

Terre Rougeneveruses the termdroitd'ainesseof feudallaw, probablybecauseit was not the customin his partof France; his citationsof feudallaw are all fromthe Librifeudorumand its commentaries.

45Art. II, concl. 14 (ed. cit., 37).

supportingthe dauphinwith the statementin Art. I, concl.13 (above,n. 39) whichhadshownthatthe fatherhadless power in the realm than he had in the patrimony,since he could

forth in the following passage:

The father and the son, granted that they may be dif- ferentiated, nevertheless have been supposed as one and the same species and nature-not in common (because each one is a man) but rather in the particular nature of the

father. The conclusion follows, for according to the

Philosopher, there is a kind of active force which impresses itself in the semen of man, derived from the soul

of the progenitor, and from his remote parents, and such is the identity of the particular nature of the father and the son.47

This quasi-traducian idea has clearly great potential

for a dynastic mysticism based on the magical quality of physical properites, and by being related to the semen instead of the blood this magical power would be espe- cially fitted to French royal succession, which excludes

women. Terre Rouge was not too inclined towards

thaumaturgy, however, and so he did not develop the "seminally impressed force" far along these lines.48 But one does find it operating at the junctures where he appeals to "nature" to explain a certain principle within the civil law, or to "nature" to justify some alteration of the civil law wrought in time. In the con- text just quoted, the seminally impressed force gives reason to the practice of co-administration of father and son. But in the passage explaining the basis of

47 "Pater & filius, licet distinguantur,supposito tamen unum idem sunt specie & naturanedumcommuni (quia uterquehomo) sed etiam in natura particulari patris. Probatur conclusio, nam secundum Philoso. in semine hominis est quaedam vis impressiva, activa, derivata ab anima generantis, & a suis remotis parentibus, & sic est identitas particularis naturae patris & filii, ut haec habentur& notantur per sanctum Thom. in I. parte, quaest. ult. artic. 1." Art. II, concl. 1 (ed. cit.,

35). See Aristotle, De generatione animalium, IV, 3 (767a768b), and Aquinas, Summa theologica, qu. 119, art. 2 (ed. Benziger Bros., 1: 456, New York, 1947). I have not tried to trace the transmission of this idea, but it will be found verbatim as in Terre Rouge (and probably lifted from him), in the treatise of Guillaume Benedicti (ca. 1500), Rep. in cap. Raynutius, "Mortuoitaque Testatore ii," ? 35 (ed. cit. 2: 113v) but also embellishedwith additional notions from Aristotle, as in this passage ibid., ??23-24, ed. cit. 2: 113r): "Tales enim scilicet sui [as in sui heredes, or suitas-see below, n. 83], portio sunt paterni corporis transfusa in liberorum procreationem, ex quo dicit Philosophicusin v. & vi. Ethic. quod filius

est aliquid patris . .. [Pater] praebet formam in procreatione filii, & mater praebet materiam, secundum Philosophum in ii de generatione animalium. Or [sic] certum est, quod forma

est, quae dat esse rei & substantiam . . . ideo quia pater praebet formam, quae nobilior est, filius cum eo censetur esse idem."

To complete the list of authorities Benedicti uses, this passage should also be cited: "ut Galenus ait, sperma hominis est velut

fidas ad ceram, id est instrumentum ad materiam circa se coagulandam" (loc. cit.). "Fidas" probably should be read "Phidias," whom Galen used in a simile when comparing the role of the semen in the generation of humans to the artificer molding a wax figure, cf. De naturalibus facultatibus, II, iii

16 GIESEY: DYNASTIC RIGHT TO THE FRENCH THRONE

[TRANS. AMER. PHIL. SOC.

filiational right, the "cause of natural filiation" is a thinly disguised seminally impressed force. In several places Terre Rouge refers to the Dauphin's "constituted right" (ius formatum) to the crown,49an elusive con- cept until viewed as another transmogrification of the seminally impressed force. It would not do to exag-

gerate these symptoms of dynastic theory in Terre Rouge's thought, but they provide enough evidence to temper the impression given at the outset of his treatise that he was a believer in limited monarchy.

At the end of the first article, which had proven the

king's inability to regulate the succession, Terre Rouge said:

Certainlythe dispositionof kings and princesbelongsto the people, and so in this matter [i.e., succession] it be- longs to the status of the realm and of the republic,etc.; for the king is not permittedto change those things which are ordinaryto the public status of the realm.50

But at the end of the fourth and last article, after hav- ing shown the unblockable right of the Dauphin to the crown, Terre Rouge says:

When any king is impairedfrom ruling by madness or any other reason, not the pope or the three estates or the civil or mystical body of the realm can give another person the coadjutorialpower, or constitutea governorto rule the kingdom,while there is alive the first-bornson,

nor impedehim in any way.51

49See Art. III, concl. 1 and 2 (ed. cit., 40). Speaking of

the "rights to the thing," as it were, it will be appropriate to cite a little-known source contemporaryto Terre Rouge, which has ideas very similar to his: "Examen de la question si le Duc de Bourgogne pourroit faire sa paix particuliere avec le Roy de France," in Dom Urbain Plancher, Histoire de

Bourgogne, Preuves, no. cxxii (ed. Dijon, 4:

"Non tamen potuit eum privare jure sibi succedendi, omissa

cione patris sicut in privata persona quae potest sibi instituere

quesitum ad rem quo jure non potest eum pater privare quia

populum, & ita in hoc pertinet ad statum regni & reipublicae,

corpus civile, seu misticum regni alium non potest coadiutorem

accipi coadiutor," which is one of the very few places where Terre Rouge makes allusion to other than a son as successor;

For all the difference in the mood of the two statements,

they are not logically incompatible. One should think in terms of temporal sequence. The Estates have an original right to determine the law of succession, and at some time in the past they approved the custom of primogenitary succession. But by the very nature of the custom so established, the Estates abdicated their actual control over the succession to the series of first-

born sons (or cognate heirs) of the descendants of the first king. The right of the Estates, therefore, becomes purely contingent, and will never again be realized unless the entire male Capetian lines dies out. As long as they continue to propagate, the Capets enjoy an im- prescriptable right to the throne.52 An analogy might be drawn with the Roman lex regia. As the imperial- ist party viewed it, anyway, the Roman people had surrendered rulership to the series of emperors perpetu- ally and it need never be renewed. The sovereignty of the Roman people was just a sentimental memory. The French Estates, by implications drawn from Terre

Rouge's argument, held a comparable position, save that they stood a chance to recover authority since their grant had been limited to a single family, which might perchance die out, while the Roman people's grant was irrevocable, having been made not to a series of mortals but to an abstraction of authority, the Imperial Dignity, which never died. (This may help explain, at least in a negative fashion, why the French dwelt much less upon the royal dignity than upon the person of the king as the embodiment of authority.)

Terre Rouge's politics might be summarized in this

way: while in no way a partisan of popular sovereignty, he was in some ways a devotee of constitutionalism-

at least the kind of medieval constitutionalism which

viewed kings as having power within and not above some great order of things that came into being by a god-inspired popular acclamation. Andre Lemaire quite rightly has placed Terre Rouge as a forerunner of the traditionalist school of political thought in the sixteenth century, although it is difficult to trace the influence of Terre Rouge's ideas from 1418 when composed until 1526 when first put in print. A very clear echo of Terre Rouge's ideas is found in a mid-fifteenth-century treatise by Jean Juvenal des Ursins, who argues that

istratore faciendo, quod hoc casu provisio facienda imcumberet tribus statibus regni, quorum status superiorem non recognoscit,

governance of England, 78-79, 356, ed. Charles Plummer, Oxford,1885.

58 In fact, the Lex Salica had a belated triumph even in

North Italy, as the AlbertineStatuteof 4 March,1848,art.

2 stated: "Lo Stato e retto da un governo monarchicorappre- sentativo. II Tronoe ereditariosecondola legge salica." See

P. Del Giudice,La storia di una frase. Commentoall' articolo 2 dello Statuo de Regno, Rendiconti del Reale Istituto Lombardo di scienze e lettere, ser. II, 25: 428-443, 1892, where the French historical background is developed, and 26: 304319, 1893, where the Italian application is traced.

59Viollet,"Femmesexclues,"174, n. 3, citing the treatise

(mentionedabove,n. 53) by Jean Juvenaldes Ursins, Bib. nat. ms. fr. 17,512,fol. 3V;also in ms. fr. n.a. 741, p. 5.

60"Or etoit ce royaume gouverne par laditte Loy Sallique et se pouvoit appeller terra Salliqua;" Juvenal des Ursins,

previous note, loc cit. Perhaps the earliest example of the corruptedform Mulier vero in regno nullam habeat portionem is Bib. nat. fr. 23,281, fol. 4v, a manuscript entitled Traitte contre les pretentions des Roys d'Angleterre, and attributed to Jean de Montreuil, whose name appears opposite fol. 1, in some later hand; cf. Viollet, "Femmesexclues," 173, n. 4.

61 Potter, "Salic Law," 249, n. 3, cites the editions and corrects earlier mis-datings and mis-attributionsof the work. I have used the edition of Paris, 1557, appended to Claude

Seyssel, La grande monarchie, p. 81ff.

62Le debat des herauts d'armes de France et d'Angleterre, ed. L. Pannier, Paris, 1877; see p. xii for the dating, in 1458 or 1459.

63This prologue is appended to the edition of Behrend

(above,n. 56). I am indebtedto my student,Mr. Stuart

Pierson, for his detective work in finding the sources used by the author of the 1464 tract, and linking this tract with the coronationentree of Charles VIII in 1484 (see below, n. 68).

VOL. 51, PT. 5, 1961]

already occupied undisputedly for a decade) upon the "old custom and ancient usages" of his realm.64 The author of the Loy Salique moved this debate back to 1328, making it appear as the decision of the magnates of France. For the stretch of history from Pharamond to Philip VI, the author probably relied chiefly upon

his imagination; in any event, the following story emerged. The law which Pharamond had elicited from the four wise men was the Salic Law, and because Pharamond was the first king of the Franks, this was a true loy royalle, and the first law of the French king- dom. This law was augmented somewhat up to the time of Charlemagne, when the science positive began

to develop in France; when Charlemagne became Roman emperor there were introduced also the "droits" (romains, one presumes); the Salic Law was not revoked, however, but because it was "La vraye loy des Francois" it acquired something of the character of a fixed constitution. The author implies that the Salic Law enjoyed an apotheosis instead of a demise in Carolingian days.65 No more additions were made to it, but its usage was "notoirement garde." The proof of this lies in the events of 1328, when the Three Estates, the peers, and the doctors of law assembled to decide the succession. All kinds of law were alleged, espe- cially the imperial constitution regarding fiefs, but they were set aside since France was deemed not to be sub-

ject to the empire. Finally, Philip of Valois arose and cited the title de alodis from the Salic Law. Our author

shifts from French to quote the passage (as he says),

"in substance" :66

Nulla portiohaereditatisde terra Salicquamulieriveniat,

(quod est interpretandumde regali dominio,quod a nullo dependet,nec alicui subiicitur ad doctrinamaliarum ter-

rarum quae in alodio dividitur) sed ad virile sexum tota haereditasperveniat.

The parentheses and italics are not the author's, but mine, employed here to set off the actual words of the Salic Law from the interpolated comment of the author. Casual readers could be deceived, and probably were, into believing that all this Latin passage was a quotation from the Salic Law. The treatise as a whole is written

in French, and, while it is quite proper for the author to use the original Latin when citing the Salic Law, one would expect him to revert to French for his own explanatory remarks. But as we see, he has inserted his own subordinate Latin clause in the middle of the

Salic Law text, saying that the passage should be understood to refer to the realm; no reader who did not have an uncorrupted manuscript of the Salic Law could be sure which words belong to the law and which were the author's. Immediately after the quoted passage, he returns to French and says "these words give plainly to understand in what manner of crown and regality the kingdom and the crown should come to the nearest descendant in the male line from Charles the Fair

[IV]." Further on, he lapses again into Latin to say "lex Salica est constitutio regia," and to observe once more that "terra autem Salica dicitur quae adhaeret

exclues," 155-156. Lemaire, Lois fondamentales,44, remarks that this incident is perhaps the first expression of the idea of "l'ordonnancedu peuple."

65 Loy salique, premiere loy des francois, 84r-v, ed. Paris, 1557: "[lex salica] qui est la premiere loy dont les Francois usassent oncques: et commencadu temps de Pharamonpremier Roy de France, estant lors pape Boniface le premier, et Em- pereur Honorius primus et au xii. an de son regne, duquel les dictateurs premiers furent Usogast, Visogast, Salagast & Uvisogast: lesquelz estoient commis par ledict Roy Pharamon (de la nomination & election des grands princes et seigneurs qu'il avoit avecquesluy des le temps que les Francois habitoient encores sur le riviere du Rin.) A respondre sur toutes les questions douteuses qu'on leur faisoit, et leur response estoit mise par escript, apres gardee pour loy: & fut le droict commencement de la loy Salicque, laquelle depuis a este creui & augmentee par les autres Roys successeurs dudict Roy Pharamon, tant Sarrazins que Chrestiens, iusques au temps de Charlemaigne. Depuis lequel temps n'y fut aucune chose adioustee, pource que la science positive commenca lors a venir en France a la promotion de Lenynus & de deux disciples de Bede. Et aussi que ledict Charlemaigne fut faict

Empereurde Romme, & eut congnoissancedes droictz, lesquelz il fist apporter en France: parquoy on eut autre maniere de faire qu'on n'avoit eu au paravant,non pas pour rien deroguer a ladicte loy Salicque, mais aussi depuis on n'y adiousta n'y accreut en aucune chose."

The alliance of the Salic Law with royal succession

66Ibid.: ". . . et pour ce que ladicteloy Salicqueestoit le vraye loy des Francois,chascunedes parties,et aussi les assistens se fonderentprincipalementsur la loy Salicque,et

aussi lesdictes parties s'arresterent fort sur l'usage notoirement garde quand telz cas estoient ainsi advenuz. Car cela estoit une moult grande evidence et bien claire demonstrance du droict desdictes parties. Et sur ces deux poinctz disoit le roy Philippe de Valois entant que touchoit ladicte loy Salicque, Quod in tit. de Alodio. lxii.cap. primi libri, in fine. Elle

disoit telz motz en substance: Nulla portio. . ." etc., as fol- lows in the text above.

67. . . lesquelles parolles donnoyent clairement a entendre qu'en maniere de couronne & regalite le royaume, et la couronne doivent venir au plus prochain descendant en ligne masculine de Charles le Bel qui avoit este le dernier des trois,

autem Salica dicitur quae adhaeret coronae, quia actores dum loquebaturAlodae, semper intelligebant de terra sive haereditate subditorumquae datur & recipiturin Alodium. Si ideo ad differentiam terrae Alodialis nuncupabaturterra regia Salica, quia lex Salica a principibusconstituta, a primo formam succedendi& modum regendi in terra regia docuit." Ibid., 84v-85. Note the similarity of this argument to the one put forth by

Juvenal des Ursins, above, n. 60.

had a kind of public debut in 1484, at the coronation entree of Charles VIII into Rheims. Along the way were set up allegorical and historical tableaux vivants

appropriate to the occasion. Just before the procession came to the Clovis skit, where the myth of the holy balm was represented, there was enacted the Phara- mond scene, showing Pharamond eliciting the Salic Law from the four wise men.68 The Pharamond myth

was as old as French history itself, but after centuries in historiographical limbo its resurrection in this coronation context gave it a new meaning. Put alongside the tableau of Clovis' baptism, for centuries the liturgical

symbol supreme of royal legitimacy in France, the Salic Law added a juristic sanction to the royal dignity. A

juristic concept of kingship had been striving for recognition since the thirteenth century, when the new king

had begun to date his accession from his predecessor's death and issue edicts in his own name before he was

crowned. This de facto undercutting of the corona- tion's efficacy now began to get a de lure status, as the

Salic Law-recently propagandizedas a law of dynastic succession-was inserted into the prolegomenon of the coronation ceremonial. Pharamond, the nation's law-

giver, was given equal status in the public eye along with Clovis, the nation's first-baptized. The cause of national pride was the better served by having, as it were, twin progenitors of the royal family: Clovis the first Christian king, and Pharamond the first French

king.69

In the early 1500's the Lex Salica received a full-

fledged juristic test, to discover its merits to explain French royal succession, at the hands of Jean Pirre

Angleberme, a lawyer of Orleans, in a tractate entitled Le Lege Salica et Regni Successione.70 Pirre offered

twenty arguments against the Salic Law and twenty for it, drawing upon all conceivable moral, legal, and logical points of view as to whether women should be excluded from succession. This treatment seems to indicate that

a lively dispute was underway whether or not to accept the Salic Law. On the pro side the telling argument comes when Pirre defends the efficacy of the Salic Law in light of authority of kings to make laws: after citing the traditional formulae of sovereignty, rex non recog- noscit superiorem and rex est imperator in suo regno, Pirre concludes that "therefore the king with the coun-

the case, the star of Pharamond rose in conjunction with the elevation of the Salic Law in the firmament of French funda-

sel of the wise can establish laws without the authority of a superior."71 He accepts therewith the conclusion of the anonymous author of 1464 that the Salic Law is a royal constitution. What is glaringly absent in Pirre's

summation, however, is any questioning whether or not the Salic Law-royal constitution or not in general- has any explicit application to the royal succession. He seems to have got hold of one of the newly doctored copies of the law, for in his introduction he says that "by this law it has been decreed in the title de alode

that the feminine line does not receive the hereditary realm of the Franks." 72 Starting with this premise,

the battery of arguments that follows, twenty-for- twenty, sic et non, was bound to miss the mark.

Of the many examples one could choose to illustrate the lingering doubts about the value of the Lex Salica in the minds of sixteenth-century thinkers, the mental tussle experienced by Charondas Le Caron is a most interesting instance. He doubts that the title de alodis in the original Salic Law applied specifically to the royal succession-for the simple reason that it applied to allods-even though he had found among the papers of his father, who had been for forty years herald-at-arms of France, an "in regno" version of the law. He is bothered, as rightly he should be, by the fact that no early Frankish historians allege the Salic Law when speaking of royal succession. But since the Salic Law was the Loy Royale of the Franks, and the Franks did exclude women from the throne, is not the very working of this similar to the history of the Lex regia of the Romans, which gave the imperium to the emperors,yet for centuries (as Le Caron believed) went unmentioned by historians until embodied in the Corpus

potuit huiusmodi legem condere sine auctoritate superioris, quem non habet ex consilio prudentum."

72 "Ea lege imprimis cavebatur in titulo de alode, ne femineus ordo Francorum regnum hereditarium nancisceretur." Ibid.

73 "Et combien qu'il soit sous le tiltre des alleuz, de allodiis ou

plus de quarante ans Heraut d'armes de France au tiltre de Champagne, lors que tels estats estoient en honneur, & diligent rechercheur de l'antiquite Francoise, recite plus amplement ledict article, & allegue en ces termes ladicte Loy, comme il tesmoigne l'avoir leue en Autheurs anciens, De terra salica nulla portio hereditatis in regno mulieri veniat, sed ad virilem

VOL. 51, PT. 5, 1961]

validity is impaired neither by the things unsaid in the original text nor by the silence of the chronicles, and the force of analogy between Rome and France (Lex regia equals Lex Salica) added its bit to the apparatus of the legend. If a legist of the scruples and intelli- gence of Le Caron could rationalize the validity of the Salic Law in respect to succession to the crown, then we have no reason to wonder at the legend being accepted almost universally in France during the six- teenth century. There was a scathing attack upon the Salic Law by Franqois Hotman, in 1573, but his substantial scholarly arguments suffered from the taint of his political passion against absolutism.74 Only in the seventeenth century, when we encounter occasion-

ally absolutists who reject the Salic Law, do we have some measurable narrowing of historical credulity- but by then the legend had gone so far that the Salic Law was likened to divine law, as in the following

quatrain:

Puisque, Franqois, la [sic] Royaume Salique Convientaux loix de la divinite,

Laisser il faut son nom d'antiquite,

Et la nommerloy saincte & angelique.75

Across the Channel at this time, to be sure, other verses with another conclusion were wont to be heard :76

could not have been vital to the meaning of the law. Fer-

Or should, or should not barre us in our Clayme;" I quote but five of the sixty-three response.

'In terram Salicam Mulieres ne succedant, No Woman shall succeed in Salike Land:'

Which Salike Land, the French uniustly gloze To be the Realme of France, and Pharamond The founderof this Law, and Female Barre.

(Henry V, I, ii)

In terms of the philosophy of fundamental law, the Salic Law's renaissance helps mark the transition from

medieval to modern principles. Typically medieval is the notion of the supremacy of law embodied in Terre

Rouge's idea that the right of succession is a custom approved by the Estates; typically modern is the concept of the king as sovereign legislator, which is im-

plicit in the supposition that the Salic Law is a "royal constitution." Terre Rouge argued against the right

of any king to regulate the succession; the Salic Law rests the basic principle of succession exactly upon a given king's promulgation. The Salic Law had many advantages over Terre Rouge's thesis. For one thing, the anonymous tract of 1464 was printed twice before Terre Rouge's treatise reached print for the first time; also, by an odd chance, it later came to be thought of as the work of Claude de Seyssel, which lent it added

prestige.77 It also had the advantages of brevity and simplicity, which are decidedly absent in Terre Rouge's thesis. The Salic Law did not require one to be learned in scholastic philosophy or the intricacies of the Two Laws in order to understand how the French happened to accept father-to-son succession: it was a rule from the beginning of the French nation! It was not a French borrowing of obscure Roman principles (e.g.,

the ius filiationis) but rather a French rule, analogically co-sovereign with the Roman. Incisive, explicit, patri- otic-an all-in-one policy-the Salic Law by compari- son made Terre Rouge's system seem to be a sterile exercise in legal intellectualism. And the mere slogan

value of the Salic Law should not be underestimated.

When the great dynastic crisis developed in the late 1500's, the need was most urgent for a grand and

it seems certain that Shakespeare had under his eye not Holinshed but Holinshed's own source: the chronicle of Edward Hall

[1548]-cf. Hall's Chronicle, 50-52, London, 1809. Indeed, it was when Mr. Alan Keen chanced upon the handwritten comment "note the exposition" in the margin alongside the Salic Law discourse in a first edition copy of Hall (photographically

reproduced as the frontispiece to Moray McLaren, "By Me ..." a report upon the apparentdiscovery of some working notes of

point of view, has served at least to cement the philological connection between the chronicler and the playwright, as set forth earlier by Dover Wilson and Gordon Zeeveld; cf. Alan

Keen and Roger Lubbock, The annotator, 1 et passim, London, 1954. Mr. John Barcroft called my attention to these lines in

Shakespeare.

77 See Potter, "Salic Law," 249, n. 3; the foregoing sentences I have fashioned from Potter's arguments, p. 246ff.